459 U.S.

1150
103 S.Ct. 796
74 L.Ed.2d 1000

Frances E. PORCHER, etc., et al.

v.
Mary E. BROWN, etc., et al
No. 81-1972

Supreme Court of the United States

January 17, 1983

On petition for writ of certiorari to the United States Court of Appeals for
the Fourth Circuit.
The petition for writ of certiorari is denied.
Justice WHITE, with whom Justice POWELL and Justice REHNQUIST
join, dissenting from the denial of certiorari.

Every state in the Union maintains an unemployment compensation system

which provides partial wage replacement for the unemployed. The federal
government credits employer contributions to state unemployment programs
meeting certain federal requirements against the amount owing under the
Federal Unemployment Tax Act, 26 U.S.C. 3301 et seq. One of the
requirements which state plans must meet is that "no person shall be denied
[unemployment] compensation under . . . State law solely on the basis of
pregnancy or termination of pregnancy." 26 U.S.C. 3304(a)(12). The Fourth
Circuit, in the opinion below, Brown v. Porcher, 660 F.2d 1001 (1981), held
that the South Carolina Unemployment Compensation System did not meet the
requirements of 3304(a)(12), and upheld a district court order requiring the
South Carolina Employment Security Commission ("the Commission") to make
retroactive payments to claimants that had been denied compensation since
January 1, 1978. In so doing, the Fourth Circuit decided three issues that merit
this Court's attention.
The most important issue now presented for this Court's consideration involves

the meaning of 3304(a)(12). South Carolina Code 41-35-120 provides that a

person will not be eligible for unemployment benefits "if the [South Carolina
Employment Security] Commission finds that he has left voluntarily without
good cause his most recent work." The Commission has determined that
resignation due to pregnancy or to an illness unrelated to the claimant's job
makes the claimant ineligible for unemployment benefits. The Fourth Circuit
held that 41-35-120, as interpreted, did not satisfy the dictates of 3304(a)
(12). It said, "[r]egardless of how the Commission treats employees with other
disabilities, the mandate of [ 3304(a)(12) ] is clear: the Commission cannot
deny compensation 'solely on the basis of pregnancy or termination of
pregnancy.' " Brown v. Porcher, supra, at 1004.

It is by no means clear, however, that 3304(a)(12) does not simply provide

that pregnancy must be treated like all other disabilitiesthat pregnancy
simply cannot be singled out for unfavorable treatment. The Department of
Labor adheres to such an interpretation, and thus disagrees with the Fourth
Circuit's interpretation of 3304(a)(12). The Department of Labor is
responsible for annually determining whether state unemployment
compensation programs meet the requirements set out in federal law. 26 U.S.C.
3304(c). Moreover, the Department played a role in the development of the
1976 legislation that added 3304(a)(12) to the Federal Unemployment Tax
Act. Unemployment Compensation Amendments of 1976 312(a), 90 Stat.
2679. The Department of Labor has repeatedly certified that South Carolina's
program, as well as the programs of eight other states with provisions similar to
that of South Carolina,* meet the requirements of 3304(a)(12). In addition, the
Administrator of the Department's Unemployment Insurance Service submitted,
on the Department's behalf, a letter to the district court reiterating the
Department's position with respect to South Carolina's program. The
Administrator explained that the South Carolina program was consistent with
3304(a)(12) because " 'it does not distinguish between pregnant claimants or
any other unemployed individuals whose separation is due to illness.' " Brief of
the United States as Amicus Curiae, at 13 (quoting Administrator's letter).

At the very least then, 3304(a)(12) is the subject of substantial uncertainty,

given the clear and direct conflict between the Fourth Circuit and the
Department of Laborthe agency to whom Congress entrusted administration
of the statute. The conflict the Court now leaves unresolved makes it difficult
for conscientious administrators of unemployment compensation programs to
determine what is required of them by the federal government. The position of
the unemployment insurance administrators in the eight states, in addition to
South Carolina, that deny benefits both to those who resigned because of
pregnancy and to those who resigned because of some non-job-related illness is

clearly perplexing. The question presented is of obvious importance to the

states; South Carolina is paying additional benefits at a rate of almost $1.5
million per year as a result of the decision below. See Application for Stay of
Enforcement of Judgment 7. The question is also surely important to large
numbers of pregnant women for whom unemployment compensation may
constitute a substantial portion of their financial resources. Apparently the
question is one of "substantial concern" to the Department of Labor as well.
Brief of United States as Amicus Curiae, at 7.
5

The second issue of significance relates to the Eleventh Amendment. This

Court has held that the Eleventh Amendment prevents federal courts from
entering judgments that are to be satisfied out of the state's general revenues,
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), or out
of state segregated tax revenues, Kennecott Copper Corp. v. State Tax
Commission, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946), and Great
Northern Life Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121
(1944). In the decision below the Fourth Circuit concluded that it could award a
judgment against the South Carolina unemployment compensation fund
because: (1) the fund is "a special fund administered separate and apart from all
public moneys and funds of the State," (2) the fund consists of employer
contributions, federal funding, investment income, and other receipts, and (3)
neither the State nor the Commission is liable for any excess in obligations on
the fund over its resources. Reliance on these distinctions is certainly
questionable under this Court's previous cases. The question of whether there
are some state funds that do not enjoy Eleventh Amendment immunity is
important, and this case presents the Court with an opportunity to address the
issue.

The third issue of significance is whether 1983 provides a cause of action to

redress a state's failure to meet the standard set out in 3304(a)(12). In Maine
v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Court held
that a plaintiff could sue to enforce a federal statute under 1983. In Pennhurst
State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67
L.Ed.2d 694 (1981), we held that a plaintiff could not use 1983 to enforce
provisions of the Developmental Disabled Assistance and Bill of Rights Act of
1975, 42 U.S.C. 6000 et seq. (1976 ed. and Supp. IV). We explained that a
federal statute may be enforced by a 1983 suit only if Congress has not
foreclosed private enforcement of that statute in the enactment itself and if the
statute created enforceable "rights" under 1983. Id., at 28, 101 S.Ct., at 1545.
In Middlesex County Sewerage Authority v. National Sea Clammers
Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), we reaffirmed
our holding in Pennhurst, supra, refusing to allow a 1983 suit to ensure

provisions of the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq.
(1976 ed. and Supp. IV) and the Marine Protection, Research, and Sanctuaries
Act of 1972, 33 U.S.C. 1401 et seq. (1976 ed. and Supp. IV). Consideration
of the difficult and unanswered question of whether the Federal Unemployment
Tax Act is enforceable by way of 1983 would provide guidance to the lower
federal courts on the application of Thiboutot, Pennhurst, and Middlesex
County Sewerage Authority.
7

I would grant certiorari to consider these issues.

The District of Columbia, Louisiana, Missouri, Nebraska, New Mexico,

Oklahoma, West Virginia, and, to a lesser extent, Vermont. Brief for the United
States as Amicus Curiae, at 18 and n. 21.